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USMC | DRB | 2009_Marine | MD0900276
Original file (MD0900276.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081120
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     20040225 - 20040607     Active:  

Period of Service Under Review:
Date of Enlistment: 20040608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070731      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 32
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM

Periods of UA / CONF : 20061021 - 20061022

NJP:
- 20060208 :       Article 91 (Insubordinate conduct by refusing to obey and insult the Sergeant of the Guard)
         Article 92 (Derelict in duties as a sentinel)
         Article 113 ( Misbehavior of a sentinel - Sleeping in QRF tent)
         Awarded: Suspended:

- 20061129 :      Article 92 (Disobey an order and failed to obey a lawful order), 2 specifications
         Article 134 (Wrongfully remove and conceal two .50 cal rounds from the Pohakuloa Training Area and wrongfully and recklessly removed two .50 cal rounds. To which he disassembled one without proper training or supervision, transported and stored both rounds in the assault pack and maintained them in the barracks)
         Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20060112 :       For your non-recommendation to Cpl for the month of February 2006. On 20051213 you were counseled and received a 6105 page 11 entry for insubordination and disrespect towards your NCO and SNCO.

- 20060208 :       For violation of Article 91; specifically you were insubordinate in conduct by refusing to obey and disrespect the Sergeant of the Guard. Article 92, specifically you were derelict in the performance of your duties as a sentinel for the QRF tests. Article 113, specifically during time of war you were found asleep in the QRF tent, when you were assigned as the sentinel for that post. Your failure to maintain constant alertness, vigilance, and remain awake, in order to preserve and protect government property is conduct u n acceptable and will not be tolerated.

- 20061129 :       For your violation of Article 86, 92 and 134 of the UCMJ. Article 92: In that PFC did on or about 20061011 fail to obey training a rea policies by wrongfully removing two live .50 caliber rounds from a training site and failing to turn the rounds over to the appropriate personnel. Article 92: In that PFC, having knowledge of a lawful order issued by the H&S Company 1 st Sergeant and Company Commander which restricted PFC to on base liberty only and to report every day, every two hours starting at 1800 on 20061020 through 20061023 to H&S Company DNCO; an order, which it was his duty to obey, did at Barracks on or about 2006 1021 and 20061022 failed to obey the same by failing to report to the DNCO as directed. Article 86: In that PFC did on or about 20061021 and 20061022 without proper authority failed to go at the time prescribed to the hut to comply with his restriction requirement. Article 134: In that PFC did on or about 20061011 wrongfully remove and concealed two .50 caliber rounds of a value of $30.00, the property of the US Government. Article 134: In that PFC did on or about 20061011 wrongfully and recklessly engage in conduct to wit: he removed two live .50 caliber rounds from a training site, disassembled one .50 caliber round without proper training and supervision, transported both rounds in his assault pack and stored them within the assault pack and maintained the .50 caliber rounds within the barracks. PFC’s conduct was likely to cause death or serious bodily harm not only to him but other personnel as well.

- 20070118 :      For recent medical evaluation and being diagnosed with a Dysthymic disorder and schizoid personality disorder.

- 20070613 :      For your diagnosis of personality disorder. In your previous counseling dated 20070118 you were given explicit and direct recommendations of corrective action following which you have shown no improvement.

- 20070613 :      For failure to show improvement from your last counseling on 20070118. Treatment for Dysthymic disorder and schizoid personality disorder, have been exhausted and future improvement is very poor. Also this type of behavior is inconsistent

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / Medical Record: Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:         From Representat ion :   From Congress member :

Other Documentation :

Pertinent Regulation/Law

 A. Paragraph 6203.3 CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation s of the UCMJ, Article 91 (Insubordinate conduct towards a noncommissioned officer), Article 92 (Failure to obey an order or regulation/Dereliction of duty as a sentinel), Article 113 (Misbehavior of a sentinel), and Article 134 ( Stealing government property).


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues
1. Reenlistment o pportunities .
2. Record of s ervice .

Decision


 Date: 20 0 9 0226        Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PERSONALITY DISORDER.

Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

: ( ) . The Applic ant did not identify any i ssues to the Board . However, the Board did complete a thorough review of the circumstances which led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service is marred by six retention warning s and 2 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct towards a noncommissioned officer) ; Article 92 (Failure to obey an order or regulation /Dereliction of duty as a sentinel) ; Article 113 (Misbehavior of a sentinel) and Article 134 (Stealing government property). These violations are considered serious offenses, punishable by punitive discharge or confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge, but opted instead for administrative discharge.

Be sides the Applicant s statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf. The Board determined the characterization of ser vice received, “General (Under Honorable Conditions ) ”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post - service documentation provided an upgrade would be inappropriate.
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
 Washington Navy Yard DC 20374-5023

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